Davis v. Hackney

• Decision Date: 17 January 1955
• Docket Number: No. 4296,4296
• Citation: 196 Va. 651,85 S.E.2d 245
• Parties: JAMES A. DAVIS, TRADING AS DAVIS MOTOR COMPANY v. CLYDE E. HACKNEY. Record
• Court: Virginia Supreme Court

Page 245

85 S.E.2d 245

196 Va. 651

JAMES A. DAVIS, TRADING AS DAVIS MOTOR COMPANY v. CLYDE E. HACKNEY.

Record No. 4296.

Supreme Court of Appeals of Virginia

January 17, 1955.

Cutchins, Cutchins, Wallace & Kessler, for the plaintiff in error.

Jones & Jones, for the defendant in error.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

We granted James A. Davis, trading as Davis Motor Company, a writ of error to a final judgment quashing the service of process on Clyde E. Hackney and the service of an attachment on his automobile and dismissing Davis' suit against him, on the ground that Hackney, a non-resident of the State of Virginia, and his property, were immune from the service of process and attachment while he was appearing as a witness in a criminal trial in this State, pursuant to a subpoena upon which he had accepted service in Tennessee.

Counsel for both parties stipulated in the trial court as follows:

'On August 18, 1952, Clyde E. Hackney purchased from James A. Davis, trading as Davis Motor Company, a certain Pontiac Catalina automobile 1952 model for the sum of $3,095.00, and gave in part payment therefor his old car, a Pontiac Convertible sedan at an agreed valuation of $1,400. The balance of the purchase price was to be financed, but no part of it has been paid by Hackney.

'On the 18th day of October, 1952, a representative of the Division of Motor Vehicles had a summons issued against Davis to appear before the Civil (Trial) Justice of Chesterfield county, Virginia, on October 30, 1952, for 'failing to give invoice of sale and breakdown of finances and insurance in violation of Section 46-532 of the Motor Vehicle Code.'

'The case was heard before the Civil (Trial) Justice on that day and Davis was fined $50,00 and costs. The case was then appealed to the Circuit Court of Chesterfield county. At the calling of the criminal docket of the Circuit Court of Chesterfield county on the 9th day of February, 1953, the case was set for the 18th day of February, 1953.

'It was stipulated by both counsel in this cause that the Acting Commonwealth's Attorney of Chesterfield county mailed a summons to Hackney at his address in Tennessee requesting his appearance on the 18th day of February, 1953, on the back of which Hackney endorsed his name below the words 'I accept service of the within summons' and mailed the said summons back to the Acting Commonwealth's Attorney of Chesterfield county.

'Hackney appeared in Virginia on the 18th day of February, 1953, and testified in the matter of Commonwealth v. Davis. A jury was waived in the cause, and the court affirmed the decision of the Civil (Trial) Justice and allowed traveling cost to Hackney in the amount of $40.00.

'Immediately after the hearing on the same day thereof Davis sued out an attachment against Hackney which was served upon him in Petersburg, Virginia, and upon the Pontiac Catalina car which had been left in Petersburg.

'The matter is now being heard on a special appearance of said Hackney, by counsel, who has moved the Judge of the said Circuit Court to quash and dismiss the said attachment on the ground that he is a non-resident of the State of Virginia and was a non-resident on the 18th day of February, 1953, and had returned to Virginia under a summons to testify in the case of Commonwealth v. J. A. Davis which was pending before the court; that the giving of said testimony was the sole purpose for which he returned to the State of Virginia, and that while within the State of Virginia he was privileged from the service of process, and that the 1952 Pontiac Catalina, which was necessary to his travel to Virginia, was likewise privileged from the service of process.'

Two assignments of error are relied upon by Davis, the first being that 'the court erred in holding that the acceptance of service by the defendant was the equivalent of proceeding under the statute to compel the attendance of the defendant as a witness and that he was immune from the service of civil process in this action. ' The statute referred to is section 19-242, et seq. of the Code, the Uniform Act relative to out-of-state witnesses. Davis' contention is that the passage of this act displaced the common law and that only under the procedure outlined in it can a non-resident witness now secure immunity from process.

As to this assignment, it was stipulated that Hackney was a non-resident of the State of Virginia and at the time of the service of process was in the State solely for the purpose of testifying as a witness in the criminal case.

Since the decision in the case of Commonwealth v. Ronald (1786), 4 Call (8 Va.) 97, we have held that non-resident witnesses are immune from the service of process while attending court. Following this decision it was held in Richards v. Goodson (1823), 2 Va. Cases 381, that a party to a cause was privileged from arrest on a civil process while in attendance upon, going to and returning from court. In the later case of Wheeler v. Flintoff (1931), 156 Va. 923, 159 S.E. 112, Wheeler, a non-resident of the State of Virginia was the defendant in the case of Commonwealth v. Wheeler, then pending before the Trial Justice of Chesterfield county. While attending court in the criminal proceeding he was served with civil process in the case of Flintoff v. Wheeler. We there held that a non-resident party to a criminal prosecution was exempt from civil process while attending court.

After the decision in the Wheeler case, the General Assembly, in 1938, passed the Uniform Act referred to above granting immunity to non-resident witnesses. Prior to this enactment Virginia could not compel the attendance of non-resident witnesses to testify in the criminal courts of this Commonwealth.

Hackney contends that the passage of the Uniform Act was in aid of the common law as employed in the Virginia decisions above referred to. We agree with this contention. The act was passed in furtherance of the common law rule and did not supplant it. Its purpose was to compel the attendance of non-resident witnesses in criminal proceedings, granting them immunity from the service of process while in attendance upon the court. Rhoads v. Dennis, (Ohio App.) 115 N.E. (2d) 708.

In the instant case, under the Uniform Act, the Commonwealth's attorney had the privilege of requesting the Judge of the Circuit Court of Chesterfield county to issue a certificate under seal stating that Hackney was a material witness in the case of Commonwealth v. Davis. The certificate could have been sent to Tennessee to a court of record in the county in which Hackney then resided, and thereupon a summons would issue to Hackney directing him to appear before the Circuit Court of Chesterfield County. Such procedure would have been in accord with the act, and had it been followed the State of Virginia would have been required to tender Hackney ten cents per mile for travel to and from Tennessee and $5 per day while traveling and while in attendance upon the court. (Code, § 19-248) ¹ This was the procedure available if necessary but it is both cumbersome and expensive. See Code, 1950, §§ 19-242 through 19-252, supra.

Instead of following the above procedure the Commonwealth's attorney sent a subpoena to Hackney in Tennessee, upon which Hackney endorsed acceptance of service and attended the court pursuant thereto. Thus the procedures provided for in the statute were dispensed with, the cost of travel reduced and the ends of justice accomplished. In this instance, the acceptance of service placed Hackney in the same position as if the process had...